Texas Courts of Appeals
Gutierrez v. State
No. 13-24-00208-CR 8/19/25
Issue:
Is former Penal Code §20.05(a)(1)(A) (Smuggling of Persons) pre-empted by federal immigration law and therefore, unconstitutional as applied to the defendant?
Holding:
No. On rehearing en banc, the Court withdrew its previous opinion by a three-judge panel, found §20.05 was pre-empted by federal law. The en banc Court held on rehearing that 8 U.S.C. §1324 does not pre-empt Texas’ smuggling of persons law because it “governs different criminal conduct prohibited by a different sovereign with its own punishment scheme in accord with its own priorities, and which does not make a distinction between citizens and illegal aliens on its face.” The Court concluded that “Texas has the right to enact and enforce §20.05(a)(1)(A)—a neutral criminal statute applicable to all who smuggle, and all who are smuggled, regardless of nationality—to prevent criminal conduct that Texas determines should be prohibited and to punish such conduct in accordance with Texas’s priorities.” Read opinion.
Commentary:
When a defendant claims that a state statute is pre-empted by federal law, she can make two different types of claims: (1) field preemption—that Congress has legislated in the field to the exclusion of any other state statute in that field, and (2) conflict pre-emption—that compliance with the state statute is impossible or is an obstacle with respect to the federal law. In rejecting the defendant’s field pre-emption claim, the en banc court of appeals held that, just because Congress has made certain conduct related to illegal aliens federal crimes, that does not mean that a state is automatically pre-empted from enacting its own laws that also relate to that conduct. Perhaps more importantly, the court of appeals noted that the federal statute that allegedly pre-empted the Texas statute deals only with the smuggling of illegal aliens. The Texas statute criminalizes the smuggling of all persons. The en banc court of appeals found this to be significant in concluding that the Texas statute was not field pre-empted by the federal statute. In rejecting the defendant’s conflict pre-emption claim, the en banc court relied heavily upon the decision of the United States Supreme Court in Kansas v. Garcia. This is a very thorough decision, and it could very well hold up if reviewed by the Court of Criminal Appeals. Regardless, prosecutors should read this decision and others that raise the issue of federal pre-emption. This issue is not going away any time soon.